Lopresti v. Unemployment Compensation Board of Review
2012 Pa. Commw. LEXIS 305
| Pa. Commw. Ct. | 2012Background
- Claimant seeks review of the UCBR’s order affirming a referee’s dismissal of her appeal as untimely.
- Notice of determination denying benefits issued Nov. 21, 2011, with the appeal deadline Dec. 6, 2011.
- Claimant’s attorney faxed an appeal on Dec. 1, 2011; fax produced a ‘no answer’ response.
- No further filing attempts occurred until Jan. 9, 2012.
- UCBR and the referee held the appeal untimely; court reviews whether nunc pro tunc relief is warranted; evidence of alleged AUCC fax shutdown was not established; failure to confirm transmission weighed against timely filing; Wright v. UCBR distinguished; court affirmed the untimeliness ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether untimely filing can be salvaged nunc pro tunc. | Lopresti argues for nunc pro tunc relief due to administrative breakdown. | UCBR argues no extraordinary circumstances shown and delay due to claimant’s or attorney’s fault. | No nunc pro tunc relief; untimely filing affirmed. |
| Whether alleged AUCC fax shutdown constitutes non-negligent conduct warranting relief. | AUCC fax shutdown alleged as manifestly wrongful conduct. | No evidence supporting shutdown; failure to confirm fax invalidates claim to non-negligent delay. | Evidence insufficient; not non-negligent under law. |
| Was the failure to confirm a successful fax transmission enough to find timely filing? | Claimant argues transmission occurred timely. | Delay caused by lack of confirmation; not timely filed. | Untimely; no timely filing. |
| Did the Wright v. UCBR standard apply to establish timeliness? | Wright shows timely fax if transmission proven. | Distinguished; here no proof of successful transmission. | Wright distinguished; case here does not support timeliness. |
Key Cases Cited
- Mountain Home Beagle Media v. Unemployment Compensation Board of Review, 955 A.2d 484 (Pa.Cmwlth.2008) (remand for nunc pro tunc upon extraordinary circumstances; heavy burden to prove right to consider untimely appeal)
- Hessou v. Unemployment Compensation Board of Review, 942 A.2d 194 (Pa.Cmwlth.2008) (burden to show non-negligent or extraordinary circumstances)
- Wright v. Unemployment Compensation Board of Review, 41 A.3d 58 (Pa.Cmwlth.2011) (faxed appeal before deadline; absence of record proof of receipt not conclusive)
- Dumberth v. Unemployment Compensation Board of Review, 837 A.2d 678 (Pa.Cmwlth.2003) (merits not considered where appeal untimely)
- Skowronek v. Unemployment Compensation Board of Review, 921 A.2d 555 (Pa.Cmwlth.2007) (discretionary remand authority of UCBR)